Does a voluntary retirement while an OSI investigation is pending which results on being placed on the ineligible list preclude the maintenance of a federal claim against the DOE for violating plaintiff’s due process rights?

Yes. Plaintiff, a tenured administrator assigned to the Committee on Preschool Education, brought a federal due process claim against the DOE for placing her on the ineligible list without her knowledge or consent. While an OSI investigation was pending as to whether plaintiff followed proper procedure in connection with a complaint on how she had handled an IEP, she voluntarily retired.

Several months later OSI substantiated the investigation and recommended that she be placed on the ineligible list and barred from future employment with the DOE.

Over 2 years later plaintiff applied for an educational position with a private company and first learned she had been placed on the ineligible list.

The DOE argued that there was no protected property interest involved, an essential element of a due process claim, since she voluntarily retired.

The Court agreed. “There is no constitutionally protected property interest in prospective government employment.” [citation omitted]

ROSEMARIE RICHARDSON, Plaintiff, v. CARMEN FARINA, et al., Defendants. No. 16-CV-1364 (JPO). United States District Court, S.D. New York. February 23, 2017.

Advertisements

Can an ex-school psychologist obtain a name clearing hearing to be deleted from the ineligible/inquiry list?

Yes. Dr. Tulsa Knox, a school psychologist, voluntarily left her tenured position with the DOE to work in Connecticut. After she resigned, an investigation was ordered to determine whether she had misrepresented her timesheets for 4 days in the last month of her employment. The investigators found that she had and having no legal control over her and no way to recoup salary already paid placed on her on the ineligible/inquiry list based on inappropriate conduct.

The ineligible/inquiry list is a DOE blacklist which effectively prevents persons listed there from ever working for the DOE. Knox argued that the DOE’s placement of her name on the list along with the reason amounted to stigma by a governmental agency which implicated her constitutional rights to a protected property interest. She sought a name clearing hearing to provide her with the requisite due process.

The DOE moved to dismiss her petition arguing that Knox had failed to file a notice of claim before she brought her petition and that while her name was placed on the ineligible/inquiry list it was not “published” a necessary action before Knox would be entitled to a name clearing hearing.

Justice Alice Schlesinger of New York County Supreme Court granted a remand back to the DOE for a name clearing hearing and the Appellate Division affirmed. Dr. Knox was not required to file a notice of claim since she sought no monetary reward. Additionally the list contains enough information for anyone who consults the list to know that she was found to have committed inappropriate conduct. Also the investigator sent a copy of its findings to the Bronx District Attorney, which, alone, would constitute publication.

Dr. Tulsa Knox, Petitioner-Respondent, v New York City Department of Education, Respondent-Appellant. SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2011 NY Slip Op 4735; 2011 N.Y. App. Div. LEXIS 4656, June 7, 2011